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SIU Director’s Report - Case # 18-OCI-022

Contents:

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury reportedly sustained by a 34-year-old woman (the Complainant) during her arrest on January 30, 2018.

The Investigation

Notification of the SIU

At approximately 7:30 a.m. on January 30, 2018, the Niagara Regional Police Service (NRPS) notified the SIU of the apparent serious injury sustained by the 34-year-old Complainant during her arrest at a Niagara Falls motel the previous evening.

The NRPS reported that at 8:00 p.m. on January 29, 2018, the Complainant was taken from the motel to the hospital due to suspected drug and alcohol intoxication, but later released. At 1:42 a.m. on January 30, 2018, the NRPS were called to the same motel a second time for a disturbance. During that encounter, the Complainant was arrested for assault police. Once at the station, she complained of a sore hand and was later found to have fractured the tip of her right middle finger.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
 
On January 30, 2018, three SIU investigators initiated an investigation at the motel in Niagara Falls. The incident scene was examined and video surveillance of the motel was obtained; the video, however, did not capture the incident that led to the Complainant’s injury.

Civilian witnesses (CWs) were identified and eventually located. A crucial CW, CW #2, unfortunately could not be located until March 2, 2018, following which he was interviewed by SIU investigators. 
 
The SIU encouraged the Complainant to accept the services of the Affected Persons Coordinator, but she declined.

Complainant:

34-year-old female interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed

Subject Officers

The SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Incident Narrative

On January 29, 2018, a 911 call was received by the NRPS call centre requesting police assistance in the removal of unwanted guests from one of the rooms at a motel in Niagara Falls.

Upon police arrival, the motel owner directed the officers to room #3 and told the officers that the occupants had been asked to leave by management but had refused to do so. When the police arrived at the room, the Complainant had disrobed and gotten into the shower; the second occupant advised the police that this was a usual practice by the Complainant in order to thwart any efforts by the police to remove her from the property. After negotiations with the Complainant to voluntarily exit the bathroom were unsuccessful, a loud noise was heard in the bathroom and police officers entered to find the Complainant lying on the floor of the shower, upside down. When the Complainant still refused to exit, the water was turned off, following which the Complainant exited the bathroom, nude, and physically resisted her removal from the property, resulting in the Complainant and two police officers falling to the floor. At that point, the Complainant indicated that her finger was injured.

The Complainant was finally removed from the motel room and transported to the hospital, where she refused treatment and left.

In the early morning hours of January 30, 2018, the Complainant returned to the motel and began to cause a disturbance. The SO, who was in the area, called for back-up and then attempted to remove the Complainant before she caused any property damage; in doing so, the Complainant struggled with the SO and both fell into a snowbank. The Complainant was then handcuffed and transported to the police station, where she complained that her finger had been injured and she was again transported to hospital to be assessed.

Nature of Injury/Treatment

The Complainant was examined at the hospital on January 30, 2018, and found to have sustained a non-displaced fracture of the middle finger (distal phalanx) on the right hand. An aluminum guard was placed over the finger.

Evidence

The Scene

The injury occurred in a room at a motel on Stanley Avenue in the City of Niagara Falls. The very small room consisted of a bed, table, television, and bathroom/shower.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Closed circuit television footage (CCTV) video from the motel was obtained and reviewed, but did not capture the incident. No relevant video or audio recordings or photographs were located.

Communications Recordings

The 911 calls and police transmissions communications recordings were obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:

  • Arrest Booking Details;
  • 911 Call Recordings;
  • Computer Aided Dispatch (CAD) Reports (x2);
  • Police Radio Transmissions Recordings;
  • NRPS policy on use of force;
  • General Occurrence Report;
  • List of Police and Civilian Witnesses;
  • NICE Table-Radio Transmission (x2); and 
  • Notes of WO #s 1-3.

The SIU obtained and reviewed the following materials and documents from other sources:
  • Medical Records of the Complainant relating to this incident; and,
  • EMS Ambulance Report.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Section 2(1), Trespass to Property Act - Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Section 9 (1), Trespass to Property Act – Arrest without warrant on premises

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

Analysis and Director's Decision

The events in question, leading to the apprehension and removal of the Complainant from a motel in Niagara Falls, are clear on the evidence collected by the SIU, which included statements from the Complainant, the subject officer (SO), two independent civilian witnesses (CWs), and three police witnesses, as well as the ambulance and hospital records of the Complainant.

On January 29, 2018, the Complainant and CW #2 were staying in room #3 at a motel in the City of Niagara Falls. The Complainant had been drinking a significant amount of alcohol and she became embroiled in an argument with CW #2. As a result of the disturbance, and sounds from outside of the room which appeared to indicate that damage was being done inside of the room, the motel owner, CW #1, called 911 at approximately 8:34 a.m., and requested that the NRPS attend to have the occupants of the room removed.

The SO and witness officer (WO) #2 attended the motel, spoke with CW #1 and confirmed that he had already told the occupants of room #3 that they had to leave, and that while CW #2 was amenable, the Complainant had refused. Having ascertained reasonable grounds to believe that the Complainant was in breach of section 2 of the TPA, the SO and WO #2 then attended room #3 to try to convince the occupants to voluntarily leave the premises.

Upon arrival at the room, CW #2 told the two police officers that the Complainant had ingested both crystal methamphetamine and cocaine, and had consumed beer, rum, and wine, on that day. The Complainant, in her statement to SIU investigators, confirmed that she had indeed consumed a third of a bottle of rum, straight from the bottle. CW #2 described the Complainant as being extremely intoxicated and intolerable. He also described the Complainant’s habit of removing all of her clothing and jumping into the shower in order to thwart any efforts by the police to arrest and remove her, which is exactly what she then did on this occasion.

The SO and WO #2 approached room #3, knocked on the door a number of times, and announced themselves as police officers, but there was no response and the door to the room was locked. CW #1 was then asked to unlock the door, and he did so, allowing the police officers entry into the room. When the officers entered, they did not see anyone in the room, and they called out again announcing the presence of police. When the SO heard the shower running in the bathroom, he knocked on the bathroom door, which was also locked, and again announced the police presence and requested the Complainant exit the bathroom to speak with the police. This request was met with shouted obscenities from the Complainant. The SO repeatedly told the Complainant to turn off the shower, get dressed, and come out as the motel owner wanted her evicted from the premises.

CW #2, who had also entered the room, was asked to intercede and try to convince the Complainant to leave the bathroom in order to avoid a physical confrontation. CW #2 managed to unlock the bathroom door and entered the bathroom. He also asked the Complainant to get dressed and leave the bathroom; her response to CW #2 was similar to that received by the police officers and the Complainant refused to exit the bathroom. Due to the situation involving the eviction of a likely naked woman, and the presence of two male police officers, the SO then requested the attendance of a female officer, WO #1, to assist. While awaiting the arrival of WO #1, CW #2 continued his efforts to convince the Complainant to come out of the bathroom. The SO and WO #2, who were standing outside of the bathroom during these negotiations, heard a loud crashing sound from within the bathroom and were advised by CW #2, who was still in the bathroom with the Complainant, that she had fallen.

As a result of concern for the safety of the Complainant and to see if she had been injured, the SO then entered the bathroom and observed that the Complainant was upside down in the shower. The SO then called for an ambulance, but the Complainant told him she did not want an ambulance, following which the SO then cancelled the ambulance.

Upon WO #1’s arrival, she too tried to convince the Complainant to exit the bathroom, but the Complainant remained in the bathtub with the shower curtain closed and refused to come out.

At that point it was determined that the best course of action to get the Complainant to voluntarily leave the bathroom was to turn off the water, which CW #1 then did, [1] following which the Complainant, after a few minutes, exited the bathroom completely naked. WO #1 then handed a towel to the Complainant, which she rejected. Once the Complainant was standing directly outside of the door, in order to prevent her again returning to the bathroom and barricading herself, WO #1 grabbed the Complainant by the right arm, while the SO grabbed her by the left. The Complainant resisted, by thrashing her arms, and she eventually slipped and fell onto the laminate floor with WO #1 and the SO beside her. Once on the floor, the Complainant kicked the officers several times while continuing to thrash her arms, with WO #1 and the SO trying to control the Complainant in order to get her handcuffed.

After the Complainant and the SO had fallen to the floor, the SO heard the Complainant say, “Let me go! My finger!”

There is no allegation, and it is agreed by all persons present, including the Complainant, that at no time did any police officer deliver any strikes, punches or kicks to the Complainant.

The officers then placed the Complainant onto the bed, while maintaining control over her legs in order that she not be able to continue kicking them. A sheet or blanket was placed over the Complainant for purposes of modesty, but she kicked it off several times.

When paramedics arrived, after being requested to attend by the police a second time, the Complainant told them that her head and her finger hurt. Due to her continuing combative behaviour and her refusal to cooperate with the paramedics, medical authorization was granted for the Complainant to be sedated, following which she was placed on a stretcher and transported to the hospital. Once at the hospital, and having roused from her sedation, the Complainant demanded that she be released by hospital staff, as she was not under arrest, and she was allowed to leave the hospital.

The ambulance call report indicates, “Patient screaming at EMS on arrival – unable to perform assessment as patient dangerous even in handcuffs,” and later, “On arrival patient naked thrashing around – yelling and kicking at PD. Patient unable to be calmed down,” and, “Base hospital contacted as patient extremely violent, needed to be restrained by PD – unable to move forward with call safely – called (hospital) for order for chemical restraint.”

The hospital records of the Complainant reveal that her blood/alcohol level upon her first admission to hospital on January 29 at 10:02 pm was 56 Mmol/L (or the equivalent of 258 mgs of ethyl alcohol per 100 mls of blood). [2] She was later discharged with the note, “Pt yelling and swearing at nurses. Pt demanding to leave. MD at bedside. MD D/C (discharges) pt.”

Later, at 1:42 a.m., a radio call was received by the SO and WO #2 to attend the hospital to remove an unwanted party (the Complainant) who was yelling and throwing things at hospital staff. The Complainant was told by hospital staff to leave and she gathered her belongings and did so, allowing the police to return to their regular duties.

At 2:20 a.m., the SO was driving past the motel when he observed the Complainant banging on the door to room #3. The SO radioed WO #2 to attend the motel to assist him in again removing the Complainant. The SO, prior to the arrival of WO #2, approached the Complainant, but kept his distance due to her prior combative behaviour, and told her that she had to leave the motel or be arrested for trespassing. The Complainant was again banging and yelling and had disturbed other guests.

The SO then approached the Complainant to escort her from the property, but she went instead to the office, where she began to bang on the window, causing the SO to fear that she would smash the window. The SO, on his own evidence, then shoved the Complainant in the area of the upper chest with an open hand, pushing her away from the window. The Complainant then stepped back and grabbed onto the arms and shoulders of the SO, they both struggled, and the SO took the Complainant down into a snowbank, causing him to fall down with her. Once in the snowbank, the Complainant refused to release the SO’s hands, both of which she held onto, resulting in his inability to access his handcuffs. The two continued to struggle until the arrival of WO #2, when, with the combined efforts of the two officers, they were able to control and handcuff the Complainant behind her back, and she was arrested for assault police.

Upon the Complainant’s arrival at the police station, she advised the booking officer that she had a sore finger and left eye. The Complainant indicated that she only noticed the pain in her finger when she arrived at the police station and she opined that she may have aggravated the injury to her finger when she was lying in the snowbank. The Complainant indicated that she was told by hospital staff, when she was later again transported to the hospital, that she had in fact already injured her finger prior to her first attendance at the hospital. On her second attendance, the Complainant had her finger X-rayed and it was discovered that the tip of the middle finger on her right hand had been fractured.

The hospital records of the Complainant, relating to her second admission to the hospital at 4:55 am on January 30, 2018, reveals the following note:

Subjective Assessment
Was here earlier and had a swollen and blackened finger on the right hand. Left with police A (sic) was agitated and swearing with staff. Still remains argumentative with staff. Has a left swollen eye and has a blackened right middle finger and complains of right shoulder.

Her right hand was subsequently X-rayed and it was concluded that she had sustained an “undisplaced fracture of middle finger distal phalanx,” and she was discharged at 6:15 am.

On this evidence, it is clear that the Complainant’s finger was already injured when she went to the hospital on the first occasion, and therefore the actions of the SO, upon the Complainant’s second apprehension, did not cause her injury.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear on all of the evidence that the Complainant was extremely intoxicated, confrontational, and combative at the time of her initial contact with the police. It is also clear that the Complainant, due to her intoxicated condition and her loud and violent behaviour, was an unwanted guest at the motel and that she was, at that point, trespassing. Officers were acting within the parameters of their duties when they responded to the 911 call and attended to remove the Complainant at the request of CW #1, the motel owner.

Additionally, it appears that the officers made every effort to have the Complainant voluntarily leave the premises without the use of physical force, in that they repeatedly requested the Complainant exit the bathroom and leave the premises; they asked CW #2, her boyfriend, to try and convince the Complainant to do so; and finally, they called in a female officer with the hopes that she might have more success in building a rapport with the Complainant and thereby be more successful in convincing her to leave, without the need to use physical force. When all other options were exhausted, the officers were acting lawfully when they apprehended the Complainant under the TPA and had her transported to the hospital. As such, the apprehension of the Complainant was legally justified in the circumstances.

Furthermore, it is abundantly clear on all of the evidence that the Complainant was extremely resistant, combative, and violent, not only with the police, but thereafter with EMS personnel and medical staff at the hospital; so much so, that the paramedics felt it was dangerous to deal with her unless they forcibly sedated her. As such, I cannot find that the SO, or any of the police officers involved in the apprehension and handcuffing of the Complainant, used any more force than was reasonably necessary and justified in the circumstances. In fact, on the evidence of the independent witnesses, there is no basis for finding that the police officers used any more than the minimal force required in order to contain and handcuff the Complainant, who was not only a danger to the police officers and everyone else present, but also to herself.

The evidence before me does not satisfy me that the Complainant was injured during her contact with the police, it being just as likely that she was injured prior to their arrival due to her thrashing about and smashing things in the motel room, or that she became injured when she fell in the shower before the police had entered the room. However, even had she sustained her injury as a result of the actions of the police in trying to apprehend her in her extremely intoxicated and violent state, where she repeatedly assaulted the police officers while resisting her apprehension, I cannot find that the police actions, in these circumstances, amounted to an excessive use of force.

In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R v Nasogaluak [2010] 1 S.C.R. 206, as follows: 
 
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety. On this record, it is clear that the force used by the SO and the other officers involved in the removal of the Complainant from the motel fell within the range of what was reasonably necessary in the circumstances to affect her lawful removal from the property. On all of the evidence, it appears that the response of all of the police officers to the Complainant’s offensive and violent behaviour was calm and restrained, and that despite her numerous assaults upon the SO, at no time did he respond in kind.

In conclusion, even were I to find that the Complainant was injured during her contact with the police officers on January 29, 2018, which I find highly unlikely, I find that the evidence does not establish that the SO, or any police officer involved in the apprehension and removal of the Complainant, acted outside of the limits of the criminal law. Therefore, as I lack the bases for the laying of criminal charges, none shall issue.


Date: November 23, 2018




Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) By using an exterior shut-off valve. [Back to text]
  • 2) For purposes of comparison, over three times the legal limit at which one may legally operate a motor vehicle in Canada. [Back to text]